general steve lenic. that starts at 10:00 a.m. eastern live on c span 3. >> here a few of the comments we've recently received from our viewers. >> i'm in my 80s and i'm a big fan on c span, i want to complement them on being able to bring together two different ie deologies like they did this morning from the kato institute and the immigration policy center. i think you need more programming that way among people that can conduct themselves with a very civil tone.

i applaud you for that. thank you very much for c span. >> i listen to c span pretty much on a daily regular basis. i find it to be very informative. it's a very good look at all of our different politicians so that citizens can understand exactly who we elect and what's being done in congress because it seems to be that congress is undecided or always fighting. it's important that the citizens have a nice outlet for them to see the proceedings that go on. so i appreciate c span, and regardless whether or not it's popular with mainstream culture, ij want them to know that they are ung people, particularly me, i'm 18, and i watch c span on a regular basis to make sure i understand what's happening in my country because i truly do

care. thank you. >> american history tour starting with the battle of little bighorn. i just watched it in its entirety. it's priceless. so many people's of the world do not understand them ownselves, but if they watch american history, they can see themselves in america and why we're such a great and wonderful nation of all the people's of the world. thank you. >> continue to let us know what you think about the programs you are watching. call us at 202-626-3400. email us at comments@c-span.org or send us a tweet @c-span comments. follow us on twitter. the house judiciary subcommittee on courts held a hearing on allowing cameras in

federal courtrooms, including the supreme court. recent bipartisan legislation has been introduced that permits federal judges to choose when to allow cameras in court proceedings. this is two hours. >> the subcommittee on courts intellectual property and internet will come to order. without objection, the chair is authorized to declare recesses at any time. we welcome all of our guests today. unfortunately, representative and chairman howard kobal and jerry nadler will not be able to make the meeting -- the hearing in beginning.

they may be here later on. at the request of them, i stated that i would explain why they are not here. for members of the public who are here today or may otherwise be observing our hearing, i'm representative tom marino from pennsylvania, vice chairman of the subcommittee on courts, intellectual property and the internet. i will be chairing today's legislative hearing. i will recognize myself and then congressman ted joyce from florida for initial opening statements. i will then recognize the chairman of the full committee representative bob goodlet and john konyers to make their remarks. with that explanation, today's hearing is on hr 917, the sunshine in the courtroom act of 2013. the bill was introduced by representative steve king in april of 2013 and includes three additional members of the judiciary committee,

representatives chaffis, lockrin and deutsche as original co-responders, subsequent to the induction. two additional members signed on in support. representatives king and lockrin will testify on the reasons they believe the legislation should be enacted. in addition to those representatives, we have two additional witnesses who will testify on a second panel. they are julie robinson, united states judge for the district of kansas, who will appear on behalf of the judicial conference of the united states, and mr. mickey austeriker, the general counsel of the national press photographer's association

on nppa. the principal authority contained in hr 917 is in section 2b, which provides subject to certain exceptions, the presiding judge, which is defined in the bill of each federal appellate court and district or trial level court is authorized to permit the photographing, electric recording, broadcasting or televising to the public of any court proceedings over which that judge presides. provisions in hr 917 would apply this authority to the supreme court of the united states as well as united states circuit courts of appeals and district courts. the purpose of hr 917 as with similar bills introduced in prior congresses is meant to address the longstanding practice of the federal courts which with few exceptions prohibits the live electronic recording of media coverage or proceedings from inside the courtroom. proponents believe existing prohibitions are a hindrance of transparency, education and general public awareness of our law and judicial processes.

due to limited access to the actual proceedings. as one of our witnesses will testify today, the ability to disseminate information via electronic coverage of courts proceedings is a critical component in affording the public the modern equivalent of attending and observing proceedings. in some, they believe the harm outweighs the benefits. chief among the concerns is the proposition that the legislation has the potential to impair substantially the fundamental right of citizens to a fair trial, while undermining court security and the safety of jurors, witnesses and other trial participants, including judges. beyond the general questions of whether cameras should be permitted in federal court proceedings are a myriad of additional questions that include where and when they should be permitted, whether consent of the parties should be required, whether the court should control the operation and

dissem nation of materials and whether congress would be required to provide additional funding and resources to the courts. today's hearing presents an opportunity to discuss in detail the issues implicated by these fundamental questions. with that i conclude my opening remarks and recognize our acting ranking member who is a co-sponsor of the bill that is the subject of today's hearing. >> thank you, mr. chairman. thanks to our colleagues for their leadership on this issue. judicial conference policy and the federal rules of criminal procedure prohibit some of the most critical legal issues facing our fact. these policies impose limitations on the public's ability to observe court proceedings, interpreting laws that can impact the lives of every american. these restrictive broadcasting policies shroud the supreme

court in secrecy and can raise questions in minds of the public on the administration of justice. chief justice berger wrote of the important of public access in richmond news versus virginia, writing that it's a place where people generally and representatives of the media have a right to be present and where their presence has been thought to enhance the integrity and quality of what takes place. while richmond newspapers addressed public access to criminal court proceedings, public access has been extended to civil as well. you can walk into any state or federal courtroom in america and see benches or seats to accommodate public audiences interested in watching a legal proceeding. the supreme court has public seating available to accommodate the lucky few. courtroom seating accommodation is an available tradition of

public court watching. public court watchers may not be as prevalent now as they were in the past. for cases importantly issues finding an available seat in the courtroom can be difficult if not impossible. most people now receive descriptions on important proceedings from press reports in various forms of media outlets. i don't -- i appreciate the work that they do, but the supreme court and federal courts need to recognize and adapt to the changes to permit the next generation of court watchers access to proceedings on important legal issues. such changes should include permitting television broadcasting. the sunshine in the courtroom act would improve u.s. federal court and supreme court transparency by increasing public accessibility to legal proceedings. under the bill, the presiding judge, a majority of the judges participating on the panel or the chief justice of the supreme court would have the discretion to permit photography, broadcasting, the televising of the proceedings. the bill also includes protections for the parties involved that would permit the judge or judges to close the court proceedings to being televised. it would permit the judge to consider if it would violate the

due process of a party and in addition a witness in a court proceeding could request to have their face and voice diseased to -- their face and voice disguised to protect their identity. it would prevent coverage of the jurors involved in a judicial proceeding and juror selection. the judge of a court would have the discretion to create rules that could be enforced the media in the interests of preserving justice and fairness. the supreme court and our federal courts hear and consider some of the most important issues facing our country. these proceedings and the decisions issued from the proceedings by the supreme court and federal courts impact every facet of the lives of americans. as one of many examples, a panel in the d.c. court of appeals heard arguments on the constitutional privacy issues involving the ndsa's collection of phone data. they have heard and hear cases

involving the affordable care act, our nation immigration laws, interpretation of the second amendment, housing and foreclosure issues, political and campaign cases and many other pressing issues that face our country. yet very few people have an opportunity, most never have the chance to observe the proceedings in person. public access to critical cases in the supreme court and federal court houses is limited to the very few who can wait in line for hours and sometimes days or who can hire a person to stand in line for them. the limited public access to the supreme court and federal court proceedings is inconsistent with the modern role of accessible media. it's time the u.s. supreme court and federal court practice is changed. i would like to thank my colleagues for their work and leadership on this issue. broadcasting the supreme court and federal court proceedings will insure that the public has full access to the oral arguments on important legal issues and will most importantly help to ensure that justice is carried out for all to see. thank you and i yield back. >> thank you, congressman.

i would like to recognize the full committee chairman, the distinguished gentleman from virginia. >> thank you, mr. chairman. today's legislative hearing on hr 917, the sunshine in the courtroom act of 2013, is one that raises substantial and important questions that have been the focus of this committee's attention before. indeed, the question surrounding whether and under what circumstances federal court proceedings should be televised or otherwise made available via electronic mediums is not novel but ones congress and the federal judiciary have considered in various forms for many years. in fact, legislation to authorize broadcast or television coverage of federal court proceedings has been introduced by members with bipartisan support as is true in the present case. in every congress, dating back to at least the 105th, most recently, the committee reported a version of this legislation in 2007 when a bill sponsored by

our colleague representative steve shabbot and representative dill la hunt was reported favorably. hr 917, the sunshine in the courtroom act of 2013, and the 2007 bill are substantially similar. the bill's sponsor stated in his written testimony his motivation and belief in introducing this bill that congress has both the constitutional authority to act and the duty to use that authority to expand public access to our courts. proponents of the bill believe that the values of transparency, accountability and education will only be enhanced by expanded public access to our federal courts. however, the principal opponents of cameras in the courtroom legislation are the supreme court of the united states and the judicial conference of the united states. the latter of which functions as the policy making body for lower federal courts. each would be impacted by the enactment of hr 917 which authorizes the presiding judge of a court to allow cameras and

recording devices to be operated in federal court proceedings subject to certain exceptions and qualifications. i appreciate judge robinson's appearance today and believe it is vitally important that the judicial conference and the supreme court avail themselves of each opportunity to participate in the committee's consideration of legislation that impacts our justice system. this is particularly true in matters that relate to the administration and operation of the federal judiciary. perhaps spurred by this committee's action in 2007, the judicial conference authorized a three-year pilot project in 2010 to evaluate the effects of cameras being used in district courts and related matters. 14 courts volunteered for the project which is ongoing, limited to civil proceedings and scheduled to conclude in july 2015. following the pilot's conclusion, the federal judicial center will prepare a report and provide it to the judicial conference's committee on court administration and case management.

it is then expected that cacm will provide a report to the judicial conference regarding the possible future use of cameras in district courts. notwithstanding the ongoing nature of the pilot, the conference currently maintains the view that this legislation will have the potential to impair substantially the fundamental right of citizens to a fair trial while undermining court security and the safety of jurors, witnesses and other trial participants, including judges. it is clear the views of proponents and opponents are strongly and sincerely held and that a discussion of the relative merits will benefit our consideration. i particularly want to thank mr. king and mr. shabbot for their work on the republican side on this issue and congresswoman lofgrin and congressman deutsche for their effort on the democratic side. this is truly a bipartisan

effort and this deserves careful consideration by the committee. with that, i yield back, mr. chairman. >> thank you, mr. chairman. i would like to recognize the full committee ranking member, the distinguished gentleman from michigan, congressman conyers. >> thank you very much, mr. chairman. i wanted to begin by mentioning that our colleague from new york, mr. nadler, wanted to be here today, but he is at the supreme court where there is oral argument going on in a very important case. and i wanted his absence to be noted and that he is very concerned about the proceedings that are taking place here in the judiciary committee. the sunshine and courtroom act,

of course, would authorize photography, electronic recording, broadcasting, or televising of any court proceeding held in the federal district court and in the circuit court of appeals and even the supreme court of the united states subject to some exceptions. as many of you may recall, the committee on the judiciary considered legislation substantially identical to hr 917. and although i voted in favor of this prior legislation, i still have nevertheless several concerns. most importantly, i want the proponents of hr 917 to address the judicial conference's

observation that this measure could potentially impair the function right of a citizen to a fair and impartial trial. for example, justin elena kagan earlier this year said that televised coverage of federal court proceedings would or might encourage participants to play to the camera. in fact, the supreme court, in estesv. texas, a case involving a state criminal trial that was televised, observed that the chief function of our judicial machinery is to ascertain the truth. the use of television, however, cannot be said to contribute materially to this objective. rather, its use amounts to the injection of an irrelevant factor into the court proceedings.

in addition, experience teaches that there are numerous situations in which it might cause actual unfairness, some so subtle as to defy detection by the accused or controlled by the judge. accordingly, i want the proponents of hr 917 to explain how the bill does not undermine a citizen's right to due process and a fair trial. secondly, we should ensure that the bill adequately protects the privacy rights of participants in federal judicial proceedings. clearly, we must be cognizant of the fact that electronic media coverage presents the prospect of public disclosure of personal information that may have a

material effect on the individual's willingness to testify or place an individual at risk of being a target for retribution or intimidation. i realize the bill authorizes a witness' image and voice to be obscured under certain circumstances. but is this sufficient to protect the witness' privacy? finally we must be mindful of the need to ensure the safety and security of our judges, our law enforcement officers and other participants in the judicial process. some believe that cameras in the courtroom could heighten the level of and potential threats to federal judges, particularly those proceedings involving highly controversial matters. the judicial conference is currently in the midst of a

pilot program expected to conclude next july that among other things is examining the impact of electronic media on the safety and security of the courtroom. hopefully, that test program will provide some guidance on this issue so that court security is not undermined. that concludes my statement. i yield back the balance of my time. >> thank you, congressman. without objection, the members' opening statements will be made part of the record. we have two very distinguished panels of witnesses today. each witness statement will be entered into the record. i ask that each witness

summarize his or her testimony in five minutes or less. to help you stay within the time, there is a light on your table. when it switches from green to yellow, you have one minute to conclude your testimony. when the light turns red it signals the five minutes have expired. our first witness today is the honorable steve king, the member of congress who represents the 4th district of iowa. representative king serves as chairman of the department operation oversight on the house agricultural committee. he also serves on the small business committee. representative king served in the iowa state senate for six years as chairman of the state government committee and vice chairman of the oversight budget subcommittee. representative king studied math and science at northwest missouri state university. welcome, mr. king. our second witness is the honorable zoe lockrin who represents the 19th district of

california. she's a member of the science, space and technology committee. she serves as ranking member of the immigration and policy and enforcement subcommittee and is a member of this subcommittee which has oversight over federal courts, intellectual property and the internet. prior to being elected to congress, she served on the santa clara county board of supervisors for 14 years. she earned her ba from stanford. welcome. we will start with you, representative king. >> thank you, mr. chairman. i thank you and our ranking member both the full and the subcommittee for the opportunity to bring this bill hr 917, the sunshine in the courtroom act, before this hearing today. i would ask consent to introduce my written testimony into the record and then to testify orally in addition.

>> without objection. >> thank you, mr. chairman. to work our way through this bill -- i want to thank my colleague and others for their bipartisan cooperation on this bill that's before us. hr 917 sunshine in the courtroom act expands public access to the courts. and when we think about what public access means, it's a different definition for us in this modern era in the 21st century than it was when the constitution was ratified. in that we have had small courtrooms, a few people traveled, there wasn't much access because of logistical difficulties. today, we turn on the super bowl and millions of people watch it on television. that's what we consider access. and yet bush v gore can be decided with a relative handful of people having almost only exclusive access to get in to hear a case like that. it was true with obamacare, atted forable care act.

the affordable care act. it was significant maneuver for even a member of this judiciary committee, myself, to be able to get into the court room to hear the oral arguments. the court needs the opportunity to make the decision to change that. we don't direct the courts to open up the court room to the cameras, but we provide the regulations that allow the courts to do so under their judgment and their discretion. to protect jurors from any kind of exposure, they cannot be exposed to the media coverage along that. we would -- we don't force the judges to open up the courtroom. we provide them the opportunity to do so. there may be an argument about where this jurisdiction to provide this stat u tory thought to open up the courtrooms to cameras come from. i would point out in article 1, section 8 and article 3, section 1, the congress established that the congress establishes the courts. in article 3, section 2, it's

clear that we write the regulations for the supreme court. i might expand that definition in another venue. we need to be expanding the public access and open up the machinery of government. when i hear -- i remember during the bush administration i heard comments the appointed president. well there's a bit of i will say suspicion about what went on in a court room that few people had an opportunity to witness. most of us, if we weren't in the courtroom, then we had to rely on the pundit's analysis that informed their analysis of what the decision really was in the courtroom. it isn't an eye to eye view for hardly anybody in today's world given the access we have in all other public functions i can think of. so we expand public access and open up the machinery of government. i also would add that the 6th amendment demands we have a right to a speedy and public trial. that takes us back to the definition of what is public. the founders knew opening the government to public served a dual purpose of holding leaders accountable and our appointed and elected officials

accountable. and a form of education as well. i would take you back to an experience that frames this for me. this was in a state district court. but i had a case in the name was king versus gustofson. it was an issue of where i was collecting on a bill. we ended up before the district court with a judge who after the decision -- after the court hearing -- i thought we had made our case absolutely irrefutably. we caught our opposition in contradictory statements, which i consider to be lies. yet the judge had 90 days to write the decision. this is the irony of life on the 89th day the judge had a brain aneurysm. he did survive that. but out of it came this they said a 30-day blank spot in his memory. how nice if he could have reviewed the videotape of the hearing before the court. otherwise, we ended up going to the state supreme court. it was a saga that lasted eight years. we could have cut that by two or

three years if the judge who had his faculties about him had been able to review the tape rather than review his notes. that's just my personal anecdote on this. i also think of the benefits that come from an educational standpoint. we are in a position where look at our law schools. i understand justice scalia will write his dissenting opinions so that they are interesting and law school students will read them and try to learn what goes on in the courtroom. but to study our courts, to be able to go back and review bush v gore or the aca litigation that took place or any of the huge landmark cases that take place before the supreme court or those that are litigated before our circuit court would be a tremendous boon to all of our law schools, all of our students and it would improve our educational process in this country. thank you for your attention. i yield back the balance of my time.

>> thank you, congressman king. the chair recognizes congresswoman. >> thank you for holding this hearing. i think the legislation is important and i'm happy to be a co-sponsor of the sunshine in the courtroom act not only in this congress but previous versions in previous congresses. over 100 years ago a man wrote that sunlight is said to be the best of disinfectants. these now famous words reflect a belief that openness and transparency are key components of functioning democracy. this is a nation founded on concept of government accountability. passage of this bill would ensure that our judicial system is better able to uphold that ideal. the sunshine in the courtroom act would allow judges to open their courtrooms to cameras, granting the public greater insight into the judicial process and building confidence in our legal system. as a supreme court found in 1948, in re: oliver, the

knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is a restraint on possible abuse of judicial power. as many of you know, the pilot projects have been going on around the country. one of the pilots is in the 9th circuit and in the northern district of california, which includes my congressional district. the pilot has been extended for a year. but in talking to the judges in the northern district, there is wide acceptance of the pilot. most seem to see no reason why modern technology should not be part of the judicial system. one -- some of the feedback i have gotten from judges is that as -- although our bill allows the establishment of rules by the judicial conference, judges feel very strongly that the -- it's essential that the identity of the jurors continue to remain obscured.

they are volunteers and they should not be subject to being part of the televised proceedings. another interesting issue raised to me by judges was that under the pilot, all the parties need to agree and consequently there haven't been very many actual televised proceedings. some of the judges wonder whether we shouldn't re-visit that, examine that element of it. this is a big deal. i took seriously the comments made by the ranking member in terms of playing to the cameras, one of the things that judges told me is that if there's a high profile case, that happens without cameras being in the courtroom. and in terms of focusing, playing to the camera, you know, one judge said, pretty soon you forget the cameras are even there. and lawyers are focused on winning their case. therefore, they have to appeal to the jury or to the judge, not

to the camera. it was not a concern that that was really a disruptive measure. still it's something that we all should discuss. in terms of personal disclosure of information, that objection to me i find difficult to understand. because our courtrooms are open. if you testify to a matter, it's a matter of public record. it's not private. so i look forward to hearing further from the judicial conference on that point. again, i want to thank the chair and ranking member for holding this hearing. i think it's important. if we can become familiar with the issues that the courts have raised and address them successfully, i think the country will be a better place. one of the judges i talked to in the northern district said the real thing that all of us want to see is the supreme court being televised, because of the important role they play. i'm hopeful this hearing and

other discussions will allow ultimately that to happen. it would be a tremendous service to our democracy. with that, i yield back the balance of my time. >> thank you, congresswoman. thank both of you for being here today. appreciate it. we will now seat our second panel. before you get comfortable, please -- i'm going to ask to you stand any how to be sworn in. i will begin by swearing in our second panel of witnesses. before introducing them, if you would please raise your right hand. do you swear that the testimony you are about to give is the truth, the whole truth and nothing but the truth, so help you god? let the record reflect that the witnesses answered in the

affirmative. you may be seated. each of the witnesses' written statements will be entered into the record. i ask that each witness summarize his or her testimony in five minutes or less. to help you stay within that time, there is a timing light on your table. when the light switches from green to yellow, you will have one minute to conclude your testimony. when the light turns red, it signals that the witness' five minutes have expired. our first witness of the second panel is the honorable julie robinson, united states district judge for the district of kansas. judge robinson was appointed in 2001 by president judge w. bush. -- by president george w. bush. she's here today on behalf of the judicial conference of the united states. prior to her position on the federal bench in kansas city, she served as a judge on the u.s. bankruptcy court for the

district of kansas for eight years. an assistant united states district for ten years and a law clerk for u.s. bankruptcy judge benjamin franklin for two years. judge robinson earned both her degrees from the university of kansas. welcome, judge. our second witness on the second panel is mr. mickey austericher. am i doing well? general counsel of the national press photographer's association. in his position, he has been actively involved in -- on issues such as cameras in the courtroom, the federal shield proposal and media access. in addition, he is an award winning photo journalist with almost 40 years of experience in print and broadcast. he also served as a professor teaching courses in media and the law at the university of buffalo law school.

he earned a degree from the university of buffalo law school and his b.s. from the state university of new york at buffalo. welcome to both of you. judge, we will start with your opening statement. would you please hit the button there so we can hear you better? >> thank you, chairman and ranking member and members of the subcommittee as well as the full committee. i'm julie robinson. i'm a united states district judge for the district of kansas. and i appreciate the invitation to appear today to discuss the views of the judicial conference of the united states regarding the issue of cameras in the courtroom and specifically hr 917 the sunshine in the courtroom act. with your consent i will submit a written statement into the record and i will briefly summarize that statement this morning. i previously served as the chair of the court administration and case management committee of the judicial conference of the

united states. and i am familiar with the conference position regarding cameras in the courtroom. before i discuss the concerns of the federal judiciary, i must emphasize as did the other judge in his testimony before the house judiciary committee in september 2007, that the judicial conference does not speak for the supreme court. therefore, i am unable to address the provisions of the bill that would authorize the broadcasting of supreme court proceedings. the legislation before us is designated as a bill to provide for media coverage of federal court proceedings. the reasons that are explained in more detail in my written statement, the judicial conference opposes this legislation primarily because it allows the use of cameras in federal trial courts in the district courts. if enacted, this legislation would have the potential to impair substantially the fundamental right of citizens to a fair trial.

while undermining court security and the safety of jurors, witnesses and other trial participants, including judges. i would like to emphasize four points this morning regarding our concerns at the trial level. first, the intimidating effect of cameras on litigants, witnesses and jurors can have a profoundly negative impact on the trial process. more over, televising the trial makes certain court orders, for example, an order sequestering witnesses, more difficult to enforce and could lead to tainted testimony from witnesses. secondly, permitting camera coverage could become a potent negotiating tactic in pretrial settlement negotiations. third, allowing cameras in federal court would create security concerns and undermine the safety of jurors, witnesses and other trial participants and heighten the level and potential of threats to judges. fourth, cameras can create

privacy concerns for persons many of whom are not parties to the case but about whom very personal information may be revealed. with regard to the issue of cameras in the federal courts of appeal, the conference opposes the bill's provisions permitting each appellate court panel to decide rather than allowing that to be made by each court of appeals as a whole, which is the existing policy. the conference did not take these positions because it is against increased publicity for the federal courts. in many aspects the federal judiciary is at the forefront of electronic innovation and transparency. nearly every filing, every trial, every appellate argument, decision and opinion is available and open to the public. over the past decade, the judicial conference has been dramatically expanded that openness by making its entire filing system electronically

available to the public through the internet. furthermore, in september of 2010, the judicial conference of the united states authorized a pilot project to evaluate the effect of cameras in district court courtrooms. and also the effect of video recordings of these proceedings and the publication of such recordings. the results of the pilot program which ends in july 2015 will help the judiciary review and evaluate our concerns with the use of cameras in the district courts. in conclusion, mr. chairman, this is not a debate about whether judges have personal concerns regarding camera coverage. it's not a debate about whether the federal courts are afraid of public scrutiny. it's not a debate about increasing the educational opportunities for the public to learn about the federal courts or the litigation process. in fact, open hearings are a hallmark of the federal

judiciary. rather, this is a question about how your constituents, individual americans, whether they are plaintiffs, defendants, witnesses, jurors, or others are treated by the federal judicial process, it's the fundamental duty of the federal judiciary to ensure that each and every citizen receives his guaranteed right to a fair trial. for the reasons discussed in my statement, the judicial conference believes that it the use of cameras in the trial courtroom would seriously jeopardize that right and therefore we oppose this legislation. i would ask that my written statement be offered and entered into the record. and i'm happy to answer any questions you may have. thank you for the opportunity. >> thank you, judge. your full statement will be entered into the record. the chair now recognizes the attorney. >> chairman, ranking members, members of the subcommittee, good morning and thank you for the opportunity to appear before you to support hr 917, the sunshine in the courtroom act of

2013. i'm of counsel to the law firm of hiscox and barkley in its media and first amendment law practice in buffalo, new york. i appear here today in my capacity as general counsel for the national press photographer's association, an organization founded in 1946 and of which i have been a member since 1973. nppa is the voice of visual journalists, with approximately 7,000 members including video and still photographers, editors and students. during my 40 year career as a photo journalist in print and broadcast, i have covered hundreds of court cases. from the at at this ka trials to the murder trial of oj simpson. murder trial of oj simpson. i was involved in the ten-year experiment with electronic coverage of courtroom proceedings from 1987 to '98 in

new york and by electronic i mean audio, visual recording as well as digital still images. we support hr 917 because there's a strong society interest in public access to the courts. as part of that openness, almost every state allows electronic coverage of criminal, civil and appellate proceedings. unfortunately, that is not the case at the federal level. in 1991, the judicial conference of the united states commenced a pilot program permitting the broadcasting, televising, electronic recording or photographing of courtroom proceedings by the media. at the conclusion of that program and despite favorable reports, the conference declined to approve the continuation of such coverage and the program ended in 1994. in 2010, the judicial conference authorized a second pilot project. this time it would be court personnel and not the media operating the equipment. the guidelines specifically state, the media or its representatives will not be permitted to create recordings

of courtroom proceedings. in 2004, electronic media coverage is the unblinking eye of the public with its unrivalled capacity to convey information instantly and to the widest audience. as the justice noted in 1932, to stay experimentation in things social and economic is a grave responsible. denial of the right to experiment may be fraught with serious consequences to the nation. but in the exercise of the high -- this high power, we must be ever on our guard lest we erect our prejudices into legal principles. it must be mindful of its high power not to erect its own prejudices into judicial rules. society can ill afford to let the arbitrary and speculative objections of jurists antagonistic to the electronic

press substantially undermine a fundamental constitutional right by lens capping the very tools of its profession and eviscerating the means by which most americans receive their news. the benefits of allowing coverage are numerous and significant. it brings transparency to the federal judicial system, provides increased accountability from litigants, judges and the press and educates citizens about the judicial process. electronic coverage allows the public to ensure that proceedings are conducted fairly and by extension that government systems are working properly. in 1991, the judicial conference of the united states commenced the three-year pilot program such coverage and the program ended in 1994. in 2010 the judicial conference

authorized a second pilot project. this time it would be court personnel, not the media operating the equipment. the guidelines state the media or representatives will not be permitted to record courtroom proceedings. in 1965, justice har land predicted that the day may come when television will have become so common place an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. that day has long since passed. justice stuart was on point when he wrote the suggestion that there are limits upon the public's right to know what goes on in the court causes me concern. the idea of imposing oh an the burden of justifying its presence is contrary to where i always thought the presumption must lie in the area of first amendment free doms. one hopes after 2015 the federal judiciary will acknowledge that electronic coverage of our courts and the fair administration of justice are not mutually exclusive. we look forward to working with the subcommittee and the full judiciary committee as you move forward with hr-917 and other similar legislation. thank you for the opportunity to testify. i look forward to answering your questions and request that my

statement be entered into the record. >> your full statement will be entered into the record without objection. as is my custom, i wait and ask my questions last because i'm here. other congressmen and women need to get to other areas, so i'm going to defer to my good friend from ohio, congressman shabbot has been a proponent of this legislation for years and years. >> thank you very much. a few thoughts and a little bit of background. this is a topic that i have been interested in for a long time. at least 30 years. i practiced law for 16 years before coming to congress. during part of the time i was practicing law i was first elected to cincinnati city council 30 years ago now. served there for about five years. one of the things i did when i was there was to have counsel -- was to have council meetings

televised. i don't know how many people actually watched it. it can be boring at times. but nonetheless the public can access. then moved to the hamilton county commission where i did the same thing there. when i came to congress, c span already existed. congress was already on television, despite a lot of the same types of concerns that that are relative to courtrooms, that people would play to the cameras. some members of congress do. the fact is that we are public folks. the public pays for the courtrooms just as it pays for our congressional chambers and i think they ought to have access to it. access nowadays, face it. it's not practical to think you can just leave your job or your family and go down to see what's happening in the local courtroom. the access is by television. should the public choose to tune in, but they should have that opportunity.

again, they are paying for it. in any event, when i introduced the legislation in the house about 20 years ago my colleague, the chief cosponsor was a former member of the committee. chuck schumer. he felt very strongly about it and gave enumerable excellent speeches. about it and gave excellent speeches. on this particular topic, we were in agreement. when he left, i think bill dela hunt did a wonderful job. we've been working on this for a lot of years now. i lost my seat back in '08 and won it back in '10 and i want to commend steve king for taking it up then. he's done a great job. but the thing that i keep hearing -- this business about potentially impairing the right to a fair trial that the judicial conference talks about,

i could understand that point of view if we didn't have years and years of experience on this, both when the court had its own pilot project back from '91 to '94 in which there essentially weren't any significant issues during that three-year period of time. and then we have the states, all of whom at this point -- we used to be able to say they all except for this one and this one, now they all have it. and we've had 20-plus years of experience with very few problems. so whatever problems there are, i think have been dealt with. our colleague, mr. nadler is the ranking member, mr. conyers has supported this. he had a good suggestion, to obscure the faces of witnesses in sensitive cases and we're leaving the oversight of this

and the rules up to the judges themselves. i just still fail to see what the opposition is to this, although i know it's still there and we haven't been able to accomplish this yet. but i think particularly at the supreme court level, as mr. king mentioned, the types of cases that are heard over there, whether it's, you know, gore/bush. whether it's the affordable care act or obama care whatever your preferred terminology is or one of the pieces, one of my things i'm proudest of that i was principle sponsor the ban on partial birth abortion which we fought for about eight years before it went tall way to the u.s. supreme court on a 5-4 vote prevailed. and i remember sitting on that side because we were in the minority then, republicans, and hearing that the case had been ruled in our favor, which i was really happy about, but we couldn't see the decision. so, those were some of the frustrations.

so i've said a lot. i don't have a lot of time for -- either one of you want to respond, especially to the potentially impairment of a fair trial? we have such a long experience. shouldn't that be sufficient to show that that shouldn't really be that much of a concern? you know? >> we have -- what we know is that the state courts have had cameras in the courtroom but there's not a uniform approach. some of them place limits on criminal cases. some of them treat civil versus criminal cases differently. some of them have consent requirements. some of them do not. the federal judiciary is going to need a uniform national approach. that's how we operate. the judicial conference makes policy for the trial courts and the trial courts ask for the judicial conference's guidance and education and policy. and so we're looking at a june form now national approach. we know that the state courts

don't have a singular model that suggests this is the way to do it. certainly studying their experience is important. but equally important is studying the experience of federal trial judges and having the benefit of all of those experiences in formulating a policy. in terms of the denial of a fair trial or the the impairment of the fair trial, what i want to, i guess, stress to you is that the most serious of concerns is not that it's going to change the behavior of lawyers or even change the behavior of other participants in the trial process. the greatest threat i think to the right to a fair trial is that in a courtroom -- and representative conyers spoke to this, it's a search for the truth. what happens is rigorous examination of witnesses, both direct and cross-examination, we don't want a situation where the witness' testimony is all affected by the fact that not

only are people in the courtroom going to hear it now hundreds of thousands if not millions of people are going to hear it on television or on the internet, perhaps their boss or their minister or their next door neighbor who would otherwise not hear that testimony. in every case, there are situations where personal information becomes a part of the record and as you've all talked about, the fact that we have open trials already, anyone can find that. all of our pleadings are open to the public through the internet as are trial transcripts. but imagine if you will in a civil trial, it's an employment case, one of the claims is a emotional distress. i think you'll remember this from being a lawyer, but on cross-examination, someone that made that type of claim will be examined extensively about everything, their personality, mental health issues, et cetera. in a personal injury case a plaintiff who made, for example a loss of consortium will now be cross-examined about their

sexual practices with their spouse or partner. in a criminal case, a confidential informant will be rigorously cross-examined in ways that will identify who that person is even if their voice and even if their face is obscured. i say all of that to say that we have legitimate and serious concerns about the impediment to a fair trial and this is what we need to study, this is why we have the pilot and these are the many questions that we are looking at and that we hope will be answered for us in terms of guidance, best practices, whether it's possible for a judge to use their discretion in a way in a given type of case but yet not impede or impair someone's right to a fair trial. >> thank you, judge. the gentlemen's time has expired, but attorney, would you briefly like to respond? >> i would hope that we wouldn't shoot the messenger. there are no less than four cameras in this courtroom right

now. i don't think any of us are paying any attention to them. we're talking to you, you're talking us to. that's what happens in a courtroom. that's what my experience has been throughout all the cases that i've covered. in new york, during the ten-year experiment, i think there's a telling statistic not one of those cases was ever appealed on the fact that somebody did not receive a fair trial because their trial was televised. i think that speaks volumes. in terms of what other information we're going to obtain from this new experiment, you know, i look back from '91 to '94, the fjc report talks about their confidence. they went through the same empirical data, the same ant ek doal data. they along with the case management committee both

recommended it and yet at the end of the day, even with the supplemental report supporting the continuation of cameras in the courtroom and electronic coverage, the judicial committee decided to not go forward with it. so, i'm not really sure, you know, how much more data we need to convince people. i know that the honorable judge robinson put some statistics in her written report. if you'll look at them, i believe that there are 17 points that were addressed and yet only three of those were over a 50% concern by the people filling out what ever type of questionnaire there was. so, i think, unfortunately, what we see is that it could, it might, it's possible. i think this is all speculative, but the overwhelming amount of evidence shows that it just hasn't happened in the experience of the courts

throughout the states and even during the experimental time that they had. >> thank you, sir. just going to take a moment here to enter something into the record. without objection, i request permission to submit for the hearing record materials from c-span, the radio and television news directors association, and ms. marine ma hoeny of latham and watkins. these materials have been circulated to all members of the hearing. the chair now recognizes the distinguished gentlemen from florida. >> thank you. i want to follow up on what you both were talking about, which is the pilot programs, the need for additional investigation into whether this might work over the long-term and judge robinson ask you to look at some of the cases the most highly

publicized cases that were televised. the oj trial, william kennedy smith, ted bun di -- in the florida supreme court where cameras are permitted, bush v. gore, in those cases, certainly the three trials, was there evidence of the concerns that you raised that would undermine an effective fair trial? i mean, we have a long history at the state level of cases that have been tried in public and on television. do we instead of simply waiting to see what we learned from these -- from the pilot, from our history, have your concerns been addressed in any of these cases or to what extent did we see those concerns act undermining fair trial really

come into play? >> well, i have to tell you the high-profile cases that have been televised that you mentioned, i didn't watch any of them gavel to gavel, but my perception, and i think the perception of many were those very concerns in those cases. but i think what's far more important is to survey the people that were involved in a particular case, the lawyers, the witnesses, i mean, the things that our pilot is going to do. their perceptions, i think, are much more compelling and persuasive than the perceptions of somebody who is watching it on tv, who doesn't know all the facts, who doesn't know what that witness testified to in a deposition and whether they're shading their testimony now when they're in front of television camera. >> we may not. viewers may not know that but the parties involved on whose bhaf your speaking, the concerns of the parties involved, certainly we would have -- these are issues that would have come up time and time again, wouldn't they? as we televise trials all over the country, many of them high profile? >> all i can tell you, sir, is i

think it's important to survey people. i'm not aware in the state courts or in those cases that you mentioned that those participants were surveyed, that their views were called upon. we think it's important that the views of the participants are a part of what we consider. once the trial is over, you know, they move on unless someone asks them, you know, those concerns may never be raised. we want the concerns, if any, raised and the context of the survey. that's why we're doing the pilot in the way we're doing it. >> i know judge robinson, that you're not taking -- you're not taking position on the supreme court, that's correct? >> the judicial conference does not speak for the supreme court. >> but it seems -- and i'll ask you this question -- it seems that since judge robinson as you said, the real concern isn't judges playing to the cameras, it's all of these other concerns that at the supreme court where

simply appearing before the supreme court is intimidating in itself and these other concerns don't really seem to apply at all. so, what is the argument? justin keegan said that she worries about people playing to the cameras. you've been to many supreme court oral arguments. for anyone who has been, is that a valid concern? >> no. absolutely not. when those red and green lights come on, the only thing you care about is persuading the nine justices that are sitting up there as to your position. i really think that -- it really does a disservice to the people, to the lawyers, to the judges to really say that people become aware and play to the cameras. i sat in the courtroom during the oj simpson trial. the lawyers there were going to

do whatever they were going to do regardless of whether there were cameras or not. as a matter of fact, i use this as a comparison, i believe the public missed a wonderful opportunity to see judge mach who oversaw the oklahoma city bombing trial. there were cameras in the courtroom there. i mean, most people don't think about it, but they were closed circuit cameras that allowed the broadcast of the proceed thags were occurring in denver to be seen by the people in a courtroom in oklahoma city. again, had that been allowed to happen, we might have seen what a well-conducted trial looked like compared to what i will admit was a circus during the oj trial, but that had nothing to do with the fact that there were cameras in the courtroom. >> and at the supreme court, where -- which is a courtroom -- our courtrooms have always been public places, always been open to the public, in the supreme court, couldn't the argument

equally be made that if the concern really is playing to the cameras, that with the current system where there are a handful of supreme court correspondents from the networks, from the major publications who have -- who are known to the justices, isn't it just as likely if that's really the concern that justices would play to them knowing that they're going to be the ones that describe what happens in the courtroom? >> i think obviously from my experience there that sometimes the justices get playful and they really don't care whether -- that there's cameras there or not cameras there. that's what they're doing there. they're either trying to ask insightful questions or just trying to be clever. and certainly it's good if you're arguing a case if you can come back with a good answer. i know in some of the really seminole cases that we've

submitted ak kus briesubmit ed am kus briefs in, i am always in awe and belief that i'm sitting in this courtroom, the highest court in the land that they will decide how the rest of us will live and there's only this handful of people. i'm fortunate that i'm admitted to the bar so i get to wait on a shorter line, but even then, they cut people off and you have to sit in the overflow room and only get to listen to it over a speaker and don't actually get to see people. i think that's really important also in terms of getting to see people. when people testify in court and it's only before the people in that courtroom, they might testify differently if it was on tv, but i would assert they might testify more honestly because of their neighbors happen to know something about them get to see it, they don't want to not be truthful. and if we are in search of the truth in a courtroom, then isn't that much better to have

everybody? i mean, that's really what the founders thought about when they were talking about court day, when people could come in and watch. >> thank you very much. thanks, mr. chairman. >> the chair recognizes the gentleman from florida, congressman desantos. >> thank you, mr. chairman. judge, i know there's difference in terms of practitioners practicing in federal, state court. people like you that get through the vetting process, sometimes that's not always the case in various state systems. and obviously there are states where they do allow cameras at the trial level and you raised the concern about due process and fairness in those cases. so given that we do have experience with state courts having cameras, does the conference believe that prejudice and ill effects abound from the use of cameras there and if so, what is the basis for that belief? >> the conference has not taken a position and really doesn't have a basis to make what's going on in the state courts.

as i said before, i would characterize what the state court is doing -- what the state courts are doing is experimental, some of them have been having cameras in the courtroom, there are so many different models. we're just concerned obviously about ensuring that there's due process in the federal courts. i don't think we're in a position to evaluate what's going on in the individual state courts. >> so with respect to this bill, it gives the presiding judge the ability to decide whether or not to broadcast proceedings. isn't the presiding judge in the best position to differentiate in those cases where it may be appropriate to record and broadcast and those that may be susceptible to undue interference. >> it's very important that the presiding judge have the ultimate discretion because the presiding judge knows the case. they know the evidence in the case. they can anticipate oftentimes what will happen in the trial. on the other hand, there are

times they can't anticipate what may happen in the trial. as trial judge, i think we would all benefit from a policy that's shaped around the results of our study, of our own colleagues across the country, in terms of what happens in certain natures of cases, why -- i think the consent requirement, for example, will educate and inform us by nature of the case what some of the specific concerns are in particular cases and i just think our pilot is going to show us what are the concerns of lawyers and other participants in the case. we're all going to be informed by that and ultimately what policy the judicial conference adopts will be well-informed because of the pilot. we ask that we be allowed to continue the pilot. it goads for another year and then to look at the results of that pilot in formulating policy. >> is there evidence that you can point to that shows that the state proceedings where you do have cameras have made state

officials more accountable and the proceedings less prone to error? >> i don't know that i could address all of those, but at least i would like to just talk a little bit, if i could, about what went on in the first experiment in federal court. that, as you recall and as i mentioned, those cases were covered by the media. in this experiment, it's courtroom personnel that are operating the equipment. so back between '91 and '93, according to the summary from the fjc, there were 257 cases that the media applied to cover. 82% of those applications were approved. unfortunately under the new guidelines in this one, not only does everybody, all the parties, have to consent to the coverage, but it's not just the coverage of the trial.

it's the coverage of each and every proceeding where they can object and then there is no coverage. i don't know if any of you have had the opportunity to look at some of the recordings that are on file on the court's website, but many of them are done with either split screen or quad screen cameras. it's like watching somebody watching a surveillance camera. i mean, from my experience, being in a courtroom, being at a trial, for the most part, it's not perry maison. it's like watching paint dry. it takes forever for things to happen. when you add to the mix a video, that for the most part really could not be broadcast anywhere, where things are not happening in quadrants and one person is speaking, i just don't think that what we're going to end up with is something of value when this pilot is over and that's what concerns me, even after the

first experiment when we had the media doing it, all of the recommendations were in favor and we still don't have cameras in the court. that's a big concern for us. >> my time is expired. so i thank the witnesses and i yield back. >> thank you, congressman. the chair recognizes the distinguished gentleman who is a ranking member of this committee, congressman conyers. >> thank you, mr. chairman. i've enjoyed the testimony of the witnesses. i would like to begin with judge robinson. with respect to the privacy expectations of a witness under hr 917, authorizes a federal judge to order the obscuring of his or her image and voice during the court proceeding. in your mind, does this

sufficiently protect the privacy expectation of a witness? >> it is not of sufficient protection in some instances, we believe. again, i don't want to -- i want to wait for the outcome of the study, but i'll give you an example that i think most trial judges believe is in issue. confidential informants, a common type of witness in criminal cases. this is an issue that we are working on, we've worked on for ten years because when we made our electronic filings open to the public through the internet, plea agreements of confidential informants are now public documents and there has been fallout from that. confidential informants have been threatened. there's all kinds of an tech doal evidence of people being injured, perhaps even killed in the bureau of prisons when they've been identified as a confidential informant.

we're trying to figure out a solution to this. if that confidential informant is testifying in the courtroom and their voice and face is obscured, their identity can still be ascertained because they're being cross-examined about who they are, what their name is, what their background is, where they lived, et cetera. and so that is of particular concern to us. these are people that cooperate with the criminal justice department relies upon their cooperation yet they are at risk. they're already with some risk with the presence of cameras in the courtroom, we think there's a heightened risk. >> thank you, so much. addressing the same question to you, attorney, do you think the obscuring of images and voices are sufficient protection for the privacy expectation of a witness? >> well, as has been said before, this is an open courtroom. i'm not quite sure that there are privacy expectations.

but certainly the presiding judge in that case should be the one who is in the best position and has the authority to make that decision whether to obscure their face, whether to alter they voice, whether to have them testify behind a screen. in terms of identification, you know, as has been said, all of these records are being made public, they're on the internet. and if somebody wants to do someone harm, then all they have to do is go get the transcript and they can find out that same information about where they live and what they do and what their habits are. so i don't think blaming electronic coverage or identifying that as the culprit here is the solution. >> uh-huh. thank you. let me now ask the judge with

the -- would you -- would your concerns about hr 917 be modified if it was -- if it was limited to appellate proceedings only? >> most of our concerns are about what happens at the trial court level. our only opposition to that part of the bill that pertain stos the circuit courts of appeal is by virtue of the way that circuit courts govern themselves, it's a decentralized government structure. they make their own rules of practice. that's our only objection. the bill, of course, calls for each individual appellate panel, panel of three typically, on a case by case or argument by argument basis to make the decision. that's inconsistent with the way they govern themselves. appellate judges don't have the authority to make govern nans

decisions how oral arguments are going to be made. >> well, let me ask the attorney about this appellate proceedings issue. what is your view, sir? >> well, certainly i don't think that the sixth or the 14th amendment rights of any defendant will be violated by covering an appellate proceeding, especially one in the supreme court. there is no testimony. we're just making appellate arguments. it's really harder for us to understand the objections when we're looking at the appellate courts. i just want to go back to something for a second. you know, during -- the supreme court has found in capital cases this evolving standard of decency and that was something that justice marble articulated. and i would suggest here because most of the courts have pretty

much found, look, the reporters can come in, you can report all you want, you just can't bring the cameras with you. i would think that there should be this evolving standard of openness and what openness and an open courtroom trial and a public trial means in 2014. and i think that there's a huge difference, even between the case that was mentioned earlier in 1965. there were 12 cameras in that courtroom during that trial. we're not talking about doing something like that here. >> thank you very much. >> thank you, congressman. the chair recognizes the gentle lady from washington. >> thank you, mr. chair and thanks to both of you for being here with us today. appreciate it. i agree with my colleagues who testified earlier and believe that our democracy is much stronger when we leverage technology that we have

available to increase the public's participation in this process. we need citizens to be engaged and informed and part of that means making sure they have access to their government. so, allowing cameras in the courtroom is one way to help educate the public about the workings of our judiciary, at the same time, making sure we implement it in a way that is responsible is going to be very important. we need to make sure we don't compromise the safety of victim's of violent crimes who may be witnesses before the court as has been brought up earlier or violate due process rights of defendants and striking the right balance is key. this bill, i believe, takes a thoughtful approach and i want to commend my colleagues for their work on it. it's important that we look at steps where we do increase transparency in our system across all three branchs of government and this bill seems to be a step in the right direction. the supreme court provides online audio recordings of oral arguments and it's been releasing audi